ALJDEC

00A-NOD24-ACC · Department of Public Safety - Adult Care Clearance · 2000-03-07

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: March 2, 2000 APPEARANCES: Clara Baldenegro on her own behalf; Assistant Attorney General Lisa Stelly on behalf of the Arizona Department of Public Safety ADMINISTRATIVE LAW JUDGE: Lewis D. Kowal _____________________________________________________________________ FINDINGS OF FACT 1. In December, 1999, Clara Baldenegro (“Ms. Baldenegro”) filed with the Arizona Department of Public Safety (“Department) an application for registration (the “Application”) for her to work in a residential care institution, nursing care institution, or home health agency. 2. Mike Timmerman (“Mr. Timmerman”) an Administrative Supervisor for the Department, testified that as part of Ms. Baldenegro’ registration, Ms. Baldenegro was fingerprinted and the fingerprint cards were sent to a division of the Department for a criminal history records search. 3. Mr. Timmerman also testified that one of his duties as Administrative Supervisor for the Department is to review applications for registration as an employee within a residential care institution, nursing care institution, or home health agency and forward an applicant’s fingerprints to a division of the Department for a criminal background check as set forth above. 4. As part of the above-mentioned criminal records search, the Department was provided with a criminal history report on Ms. Baldenegro. Mr. Timmerman testified that he learned from Ms. Baldenegro’ criminal history report that on November 7, 1980, Ms. Baldenegro was found guilty of the crime of Larceny in Maricopa County Justice Court, Tolleson. 5. In the Application, Ms. Baldenegro certified that she had been convicted of Theft. 6. According to the Department, the above-mentioned criminal conviction of Larceny falls under the general classification of the offense of Theft, one of the proscribed criminal offenses set forth in A.R.S. §36- 411 which caused the Department to deny Ms. Baldenegro’ registration. 7. Mr. Timmerman’s testimony as set forth above is determined to be credible. 8. During the hearing, Ms. Baldenegro did not dispute that she was convicted of the crime of Larceny but contended that the conviction occurred a long time ago when she was about twenty-two years old and that she has not had any other criminal convictions. The offense involved the taking three or four watermelons from a grove that Ms. Baldenegro and her father believed to be owned by her father’s friend, who had given them permission to take watermelons. It turned out that the grove from which the watermelons were taken were not owned by the father’s friend and that they had mistakenly taken the watermelons from a grove owned by another person. 9. Other than the above-mentioned criminal conviction, there is no evidence in the record that questions Ms. Baldenegro’s qualifications or credentials to be registered in accordance with A.R.S. §36-411. 10. During the hearing, the Administrative Law Judge informed the parties that the scope of the hearing was limited to whether the Department acted appropriately under the law in denying Ms. Baldenegro’s registration and not whether A.R.S. §36-411 is a well drafted statute or is overly restrictive. CONCLUSIONS OF LAW 1. A.R.S.§36-411 provides the Department with the authority to require registration on Departmental forms and conduct a criminal history records check of the person seeking registration to work in a residential care institution, nursing care institution, or home health agency. 2. It is determined that the crime of Larceny falls under the general classification of the offense of Theft, one of the proscribed criminal offenses under A.R.S. §36-411 that precludes a person from being registered to work within a residential care institution, nursing care institution, or home health agency if that person provides or will provide direct care, home health services or supported services. 3. Ms. Baldenegro did not sustain her burden of showing that the Department’s denial of her application for registration to work in a residential care institution, nursing care institution, or home health agency should be reversed. 4. The totality of the evidence of record adequately supports the Department’s denial of Ms. Baldenegro’s application for registration based upon Ms. Baldenegro’s conviction of Larceny, a crime that falls under the general classification of the proscribed offense of Theft under A.R.S. §36- 411. RECOMMENDED ORDER Based on the above, the Administrative Law Judge recommends that the Director of the Department uphold the Department’s denial of Ms. Baldenegro’s registration to work in a residential care institution, nursing care institution, or home health agency. Done this day, March 9, 2000

______________________________________ Lewis D. Kowal Administrative Law Judge

Original transmitted by mail this ____ day of ____________, 2000, to:

Department of Public Safety - Adult Care Clearance Dennis A. Garrett Mail Code 2300 Arizona Department of Public Safety Applicant Team #2/Attn. Mike Timmerman Post Office Box 6638 Phoenix, AZ 85005

By ___________________________

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Office of Administrative Hearings 1400 West Washington, Suite 101 Phoenix, Arizona 85007 (602) 542-9826